RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-02611
COUNSEL: NONE
(Applicant) HEARING DESIRED: NO
(Service Member)
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses record be changed to reflect he made an election for former spouse coverage based on full retired pay under the Reserve Component Survivor Benefit Plan (RCSBP) election.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her former spouse failed to submit an RCSBP election form as required and in compliance with their court-ordered divorce decree. She was unaware that he had not made the court-ordered RCSBP election, as she did not have any communications with him or the Air Force Retirement Plan officials, until after she received her first retirement check, subsequent to her former spouse reaching retirement eligibility at age 60 (1 November 2009).
In support of her appeal, the applicant provides a personal statement, a copy of her application package for former spouse payments from retired pay, a copy of their Judgement of Divorce, a copy of her former spouses point credit summary, a copy of a Defense Finance and Accounting Service (DFAS) letter, and a copy of their marriage license.
The applicants complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The service member was notified of his eligibility to participate in the RCSBP via a certified letter, dated 17 July 1989. Records indicate he completed an ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, reflecting his election of Option C (Immediate annuity for spouse and children).
On 10 April 2002, the service member and applicant divorced, and the divorce awarded former spouse coverage. On 10 April 2003, the applicant filed a Written Request by Alternate Payee for Survivor Benefits Elections. On 1 November 2009, the service member became eligible to received Reserve retired pay based on him turning 60 years old.
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AIR FORCE EVALUATION:
ARPC/DPP recommends denial. DPP states the service member did not request to change his RCSBP coverage within one year of his divorce decree as required by Title 10, USC, Section 1448. The couples divorce was final on 10 April 2002, and the applicants deemed election application was filed on 24 April 2003.
The complete DPP evaluation, with attachments, is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
She did not receive any correspondence until she received an instructional letter from DFAS on 3 October 2003, which was already passed the one year anniversary of their divorce; however, it was not past one year from the Qualified Domestic Relations Order (QDRO). She was told she had one year from the QDRO to complete the necessary DD Form 2293. The QDRO was not completed and filed with the court until 4 April 2003.
The applicants complete rebuttal, with attachments, is at Exhbit E.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or regulations.
2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicants complete submission in judging the merits of this case; however we note it involves two potential SBP beneficiaries. The service member and former spouses divorce decree indicates the service member was directed by the court to provide his former spouse SBP benefits; however, there is no evidence the member, or the former spouse, submitted a valid former spouse election within one year following their divorce. Although the AFBCMR has the authority, it should not rule on a dispute between two claimants to a benefit that only one of them can receive unless extraordinary circumstances exist.. While we do not take issue with the applicants assertion that her divorce decree ordered her former husband to continue coverage for her under SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. Regrettably, the applicant also failed to execute a deemed election for coverage within the one year timeframe. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure of she and her former husband to effect the former spouse coverage, based on the legal guidance the Board has been given, we can only grant the relief sought if the members current spouse provides notarized consent relinquishing the benefit. Otherwise, the applicants only recourse is to return to a court of law to have the issue decided. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.
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THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.
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The following members of the Board considered AFBCMR Docket Number BC-2010-02611 in Executive Session on 7 April 2011, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-02611:
Exhibit A. DD Forms 149, dated 13 Jul 10, w/atchs.
Exhibit B. Letters, SAF/MRBR, dated 28 Jul 10.
Exhibit C. Letter, ARPC/DPP, dated 27 Aug 10, w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 17 Sep 10.
Exhibit E. Letter, Applicant, dated 11 Oct 10, w/atchs.
Panel Chair
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